Description:
"Myanmar’s1
political and legal institutions have been rapidly changing since
the 2010 general elections—the first multi-party contest in fifty years. The
elections were followed by the release of Aung San Suu Kyi and the major-
ity of other political prisoners in 2010 and 2011, the National League for
Democracy’s victory in the 2012 by-elections, and the revival of diplomatic
relations with the United States.2
Lessons from elsewhere suggest that times
of political liberalization are opportune moments for domestic lesbian, gay,
bisexual, and transgender (LGBT) rights movements to emerge, as activists
enjoy greater civil-political freedoms to raise rights consciousness, speak out
against oppression, and organize collectively.3
Therefore, while Myanmar’s
military regime transitions into civilian rule and democratic institutions,
this article examines the sociolegal conditions of its sexual orientation and
gender identity (SOGI) minorities,4
highlights their collective efforts at—
and prospects for—legal redress, and points to future research directions.
Grounded in ongoing fieldwork in Myanmar and Burmese communities in
Thailand since 2011,5
this article provides the first account of the legal and
human rights status of SOGI minorities in Myanmar and the emergence of
an indigenous LGBT rights movement.
SOGI minorities in Myanmar routinely suffer human rights abuses:
The British colonial legacy of Section 377 of the Penal Code still criminal-
izes same-sex sexual relations; wide statutory powers enable a corrupt
police force to persecute them in their everyday lives; and they lack legal
redress for discrimination and abuse inflicted by family members, employ-
ers, teachers, and others in their social circles. However, even before the
political transition, Myanmar’s LGBT rights activists had begun to address
these issues, building ties between migrant and grassroots communities in
their home country to seed a movement that eventually coincided with the
country’s democratization. Hence, since 2012, they have organized the first
International Day Against Homophobia (IDAHO) and Transgender Day of
Remembrance (TDoR) events in Yangon and other cities,6
conducted research
to document human rights abuses, called for legal reform, and made political
alliances. Exiled activists living in Thailand are also returning to Myanmar.
As they take advantage of larger political and legal reforms, they are faced
with the challenges of seeking decriminalization of same-sex relationships,
as well as addressing the police persecution that is symptomatic of Myan-
mar’s corrupt and arbitrary legal system. These future challenges and the
ways in which LGBT rights activists have thus far overcome repressive laws
to organize collectively shed light on the political mobilization of human
rights in a changing Myanmar.
After providing background on Myanmar’s political transition, this article
sets out the legal context, emphasizing restrictions on civil-political liberties
that suppress collective organizing. Next, it explains local understandings
of SOGI minorities. Then, it analyzes their legal environment, detailing the
laws, police abuse, and other forms of discrimination against them. After
that, it examines how Burmese activists overcame legal obstacles to build
a fledging LGBT rights movement with grassroots support. The conclusion
discusses future challenges for the movement and distills broader lessons
for Myanmar’s political transition.
fifty years of military dictatorship. What is geographically today’s Myanmar
fell to British rule following waves of colonization.7
To control widespread
crime and disorder, which arose at least partly in response to their colonial
invasion, British administrators introduced repressive laws, such as the Un-
lawful Associations Act of 1908 and the Rangoon Police Act of 1899, that
have had long-lasting impact on civil-political liberties.8
In 1948, when the Union of Burma gained independence from the
British, it inherited these repressive laws but also envisioned liberal demo-
cratic governance that provided for constitutional protection of fundamental
liberties.9
However, ethnic-identity politics immediately troubled the former
colony,10 which offered ethnic minorities little meaningful devolution of power
within its “quasi [ethnic]-federal structure,”11 and armed groups overran a
significant portion of its territory within the first decade of independence.
The short period of liberal democracy ended when a caretaker military gov-
ernment took power in 1958 and then cemented military rule with a coup
in 1962. The military government later promulgated the 1974 constitution
and declared Burma a one-party socialist state, solidifying its dictatorship
under a centralized, totalitarian state structure.12
In 1988, after twenty-six years of military rule and severe economic
mismanagement, a mass, student-led uprising erupted throughout urban
areas. General Ne Win stepped down, but the military eventually reasserted
control by killing an estimated 3,000 protestors.13 Amidst the crackdown on
protestors, widespread arrests, and torture, the new regime—named the State
Law and Order Restoration Council, and later the State Peace and Develop-
ment Council—vowed to restore stability and claimed that it would hand
over power after elections in 1990.14 However, when the National League
for Democracy party won 82 percent of the seats, the junta suppressed the
party and continued to hold Aung San Suu Kyi under house arrest.15
Ruled by the military since 1962, Myanmar experienced drastic changes
in its legal system that undermined judicial independence and hampered the
development of common law, inherited from the British.16 The junta gained
notoriety for human rights violations, some of which were carried out using
such draconian legislation as the Emergency Provisions Act and the State
Protection Law, under which Aung San Suu Kyi was detained.17 Meanwhile,
urban activists from the 1988 uprising went underground or joined the in-
surgency in rural areas. Others fled into political exile and founded human
rights organizations overseas, focusing on issues such as ethnic minorities,
gender, youth, and LGBT rights.
After disregarding the results of the 1990 elections, the junta announced
that it would draw up a new constitution. This constitution was finally
passed in 2008 by a managed referendum that was widely perceived as il-
legitimate.18 While the new constitution provided for a presidential system
of governance19 with a bicameral legislature,20 it also reflected the military’s
continuous influence over politics. Members of the armed forces are guaran-
teed 25 percent of the seats in the Lower House of the Hluttaw (parliament)21
and six out of eleven members of the powerful National Security Council,
which selects the Commander-in-Chief.22 Fundamental rights are limited by
qualifications, such as “Union security,” “law and order,” and “public order and morality,”23 and come with a revocation clause that allows the military
to curtail rights with impunity.24
The first nationwide elections under the 2008 Constitution took place
in 2010. Contrary to gloomy predictions,25 President Thein Sein’s govern-
ment rapidly implemented reforms, signaling the beginning of transition
to civilian rule. Since then, the new government has released the majority
of political prisoners, allowed Aung San Suu Kyi and the National League
for Democracy to enter parliament, brokered a near-nationwide ceasefire
with insurgent groups (fighting continues in Northern Myanmar), permitted
political exiles to return, established the Myanmar National Human Rights
Commission, abolished pre-publication print censorship, removed restrictions
on “politically sensitive” websites, and passed laws allowing independent
trade unions and peaceful assembly.26..."
Source/publisher:
Human Rights Quarterly
Date of Publication:
2015-00-00
Date of entry:
2021-10-13
Grouping:
- Individual Documents
Category:
Countries:
Myanmar
Language:
English
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Format:
pdf
Size:
192.66 KB
Resource Type:
text
Text quality:
- Good